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Exhibit 10.4
FORBEARANCE AND WAIVER AGREEMENT
This FORBEARANCE AND WAIVER AGREEMENT, dated as of June 30, 2000
("Agreement"), is entered into by the undersigned parties with respect to that
certain Credit Agreement, dated as of May 5, 2000 (the "Qualcomm Credit
Agreement"), by and among Globalstar, L.P. ("Globalstar"), as borrower, QUALCOMM
Incorporated ("Qualcomm") and the other Lenders named therein and Qualcomm, as
agent. Capitalized terms not defined herein have the meanings given to them in
the Qualcomm Credit Agreement.
Recitals
A. Reference is hereby made to (i) the Credit Agreement, dated as of
December 15, 1995, as amended (the "Chase Credit Agreement"), among Globalstar,
Chemical Bank (now The Chase Manhattan Bank), as agent ("Chase"), and the
lenders from time to time parties thereto, (ii) the Guarantee, dated as of April
23, 1996 (the "Guarantee"), made by Lockheed Martin Corporation ("Lockheed
Martin") in favor of Chase, as agent for the lenders from time to time parties
to the Chase Credit Agreement, (iii) the Restructuring, Financing and
Distribution Agreement, dated as of January 7, 1996, as amended (the
"Distribution Agreement"), among Lockheed Martin, Loral Space & Communications
Ltd. ("Loral") and certain other parties, and (iv) the Intercreditor Agreement
(the "Intercreditor Agreement") and the Fee Agreement (the "Fee Agreement"),
each dated as of April 19, 1996 and each by and among Globalstar, Globalstar
Telecommunications Limited, Loral, Loral Corporation, DASA Globalstar Limited
Partner, Inc. ("DASA"), QUALCOMM Limited Partner, Inc. ("Qualcomm") and Space
Systems/Loral, Inc. (together with DASA and Qualcomm, the "Partner Guarantors").
B. Globalstar has borrowed an aggregate principal amount of $250 million
under the Chase Credit Agreement, which principal amount, together with all
accrued interest thereon, is due and payable on June 30, 2000. Pursuant to the
Guarantee, Lockheed Martin has guaranteed certain obligations of Globalstar
under the Chase Credit Agreement and, pursuant to the Intercreditor Agreement,
each of the Partner Guarantors has guaranteed certain obligations of Globalstar
under the Chase Credit Agreement. Pursuant to the Distribution Agreement and the
Fee Agreement, if Lockheed Martin or a Partner Guarantor makes payment under the
Guaranty or the Intercreditor Agreement, as the case may be, Globalstar has the
right, upon obtaining the requisite "Vote of the Disinterested Partners" (as
such term is defined in the Fee Agreement), to issue to Lockheed Martin or such
Partner Guarantor, as the case may be, a subordinated promissory note of
Globalstar ("Globalstar Subordinated Debt") in respect of any rights of
subrogation of Lockheed Martin or such Partner Guarantor, as the case may be, in
connection with such payment.
C. If Globalstar's obligations under the Chase Credit Agreement are not
paid in full by Globalstar on June 30, 2000, it would constitute an Event of
Default under Section 6.1(f) of the Qualcomm Credit Agreement. Globalstar has
requested that the Lenders forbear from exercising any remedies available under
the Credit Documents as a result of the occurrence of such Event of Default, and
waive such Event of Default under certain circumstances, and the
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Lenders are willing to do so subject to and pursuant to the terms and conditions
of this Agreement.
Agreement
NOW THEREFORE, the parties hereto hereby agree as follows:
1. Forbearance. For a thirty nine (39) day period commencing on July 1,
2000 (the "Forbearance Period"), Lenders shall forbear from exercising any
remedies (including acceleration) that they may have against Globalstar as a
result of the occurrence of an Event of Default under Section 6.1(f) of the
QUALCOMM Credit Agreement due to the Chase Credit Agreement not being paid in
full by Globalstar on June 30, 2000. Such forbearance does not apply to any
other Event of Default under the QUALCOMM Credit Agreement or other failure by
Globalstar to perform in accordance with the QUALCOMM Credit Agreement.
2. Waiver. In the event the Chase Credit Agreement is not paid in full by
Globalstar on June 30, 2000, Lenders agree to waive the occurrence of the Event
of Default that arises under Section 6.1(f) of the QUALCOMM Credit Agreement due
to the Chase Credit Agreement not being so paid in full if, on or before the
expiration date of the Forbearance Period, each of the following occurs: (i)
Lockheed Martin performs under the Guaranty by paying to Chase not less than
$207,272,536.63 (exclusive of allocable interest and fees included in such
amount that are paid by Globalstar); (ii) Lockheed Martin or any person
indemnifying Lockheed Martin for a portion of such payment, as the case may be,
is issued Globalstar Subordinated Debt in an aggregate principal amount equal to
the amount of the subrogation claim of Lockheed Martin (in respect of any rights
of subrogation of Lockheed Martin arising as a result of performing under the
Guaranty) as full satisfaction of such subrogation claim, as provided in and
pursuant to the terms and conditions of the Distribution Agreement; (iii) other
than for the issuance of such Globalstar Subordinated Debt, Globalstar has not,
directly or indirectly, entered into any arrangement with Lockheed Martin to
reimburse, make-whole or otherwise compensate, in whole or in part, Lockheed
Martin for any claims in subrogation or otherwise in connection with Lockheed
Martin performing under the Guaranty; (iv) each Partner Guarantor is issued
Globalstar Subordinated Debt in an aggregate principal amount equal to the
amount of the subrogation claim of such Partner Guarantor, respectively (in
respect of any rights of subrogation of such Partner Guarantor arising as a
result of performing under its respective cash collateral agreement and draws
occurring under the related letter of credit), as full satisfaction of such
subrogation claim, as provided in and pursuant to the terms and conditions of
the Fee Agreement; and (v) the obligations of Globalstar under the Chase Credit
Agreement are paid in full.
3. Successors. This Agreement shall be binding upon and inure to the
benefit of Globalstar and Lenders and their respective successors and assigns.
4. Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the matters set forth herein and supersedes any
other oral or written agreements or understandings with respect to the matters
set forth herein.
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5. Course Of Dealing. No course of dealing on the part of Lenders or their
officers or employees, nor any failure or delay in the exercise of any right by
Lenders, shall operate as a waiver thereof, and any single or partial exercise
of any such right shall not preclude any later exercise of any such right.
Lenders' failure at any time to require strict performance by Globalstar of any
provision shall not affect any right of Lenders thereafter to demand strict
compliance and performance. Any suspension or waiver of a right must be in a
signed writing.
6. Legal Effect. Except as amended by this Agreement, the Credit Documents
remain in full force and effect.
7. Governing Law; Counterparts. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
BORROWER
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GLOBALSTAR, L.P.
By: LORAL/QUALCOMM SATELLITE SERVICES,
L.P. its General Partner
By: LORAL/QUALCOMM PARTNERSHIP, L.P.,
its General Partner
By: LORAL GENERAL PARTNER, INC.,
its General Partner
By: /s/ Nicholas C. Moren
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Name: Nicholas C. Moren
Title: Senior Vice President and
Treasurer
AGENT AND LENDER
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QUALCOMM INCORPORATED
By: /s/ Richard Sulpizio
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Name: Richard Sulpizio
Title: President
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